People v. Borjas

• Decision Date: 06 July 1976
• Docket Number: No. 26490,26490
• Citation: People v. Borjas, 552 P.2d 26, 191 Colo. 218 (Colo. 1976)
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Amador BORJAS, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 26

552 P.2d 26

191 Colo. 218

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Amador BORJAS, Defendant-Appellant.

No. 26490.

Supreme Court of Colorado, En Banc.

July 6, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee J. Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

DAY, Justice.

Defendant, Amador Borjas, was convicted by a jury of second-degree assault. He asserts several grounds for reversal and a new trial. We find them without merit and affirm.

At the trial, it was shown that both defendant and the victim, Abdon Lucero, were leaving a local eatery, following a fight in which defendant had not participated. Defendant had entered an automobile with several friends, intending to leave for home, when Lucero approached the automobile and confronted defendant, who then got out of the vehicle.

As the two parties drew near to each other, a shot was fired in the area. Lucero fell, and defendant began kicking him and beating him with his belt. One of defendant's friends made several attempts to stop the beating. When the defendant had ceased assaulting and pummeling Lucero and had left the scene, Lucero was taken to a nearby hospital. It was there discovered he had been fatally wounded by a gunshot which had preceded the beating. The investigation of the scene revealed an automatic pistol which may have been in the victim's possession during the fracas. The testimony was conflicting as to whether the pistol was in Lucero's hand.

The defendant claimed self-defense, stating that he had merely reacted in fear; that he thought that Lucero had fired a gun at him, also claiming that Lucero was maliciously grabbing at him.

Defendant bases his appeal on several allegations of error: (1) that evidence of the victim's death was presented to the jury; (2) that the trial court did not fully explore the motives of a chief defense witness in claiming his Fifth Amendment right not to testify; (3) that the trial court did not rule on defendant's objections to statements of the district attorney in closing argument; (4) that a police detective was permitted to testify that a weapon found at the scene had not been fired; and (5) that the trial court denied defendant's motion for new trial based on newly discovered evidence.

I.

Defendant contends the court erred in admitting the statements of two prosecution witnesses who informed the jury of the death of Lucero and in allowing the jury to view a photograph of the face of the victim following death. He argues the jury's knowledge of the death of the victim necessarily tended to prejudice them against defendant.

One of the witnesses, detective Frankeberger, testified that his investigation twice took him to the coroner's office, thus implying that the victim had died. The other witness, Dr. Clark, was the pathologist who had performed the autopsy on Lucero. Dr. Clark indicated to the jury that Lucero had died from injuries inflicted by a gunshot, and that death had not been instantaneous.

In light of all of the evidence which was presented during trial, the remarks of detective Frankeberger concerning his visits to the coroner's office were not prejudicial to defendant. Furthermore, no objection was raised by defense counsel concerning this testimony.

The photograph in question had been taken by detective Frankeberger and showed marks on Lucero's face. According to evidence given by Dr. Clark, the lacerations probably were inflicted by the belt buckle of defendant. The only objection made by defense counsel before the photograph was shown to the jury went to a possible prejudicial effect of the picture itself and that it was cumulative. It is settled law in Colorado that such a photograph is admissible graphically to portray the location, nature, and extent of wounds; and that such a photograph is competent evidence of any relevant matter which it is competent for a witness to describe in words. Young, Jr. v. People, 175 Colo. 461, 488 P.2d 567 (1971); Gass v. People, 177 Colo. 232, 493 P.2d 654 (1972).

It is clear from the testimony that the evidence of death was admitted only as it was inextricably interwoven with the principal transaction. The statements of Dr. Clark as to the cause and time of Lucero's death were necessary to the jury's understanding of the offense involved. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956). Dr Clark made it clear that Lucero had probably been alive at the time of the beating. He testified that death had resulted, not from that beating, but from a gunshot wound. The court carefully instructed the jury that the defendant had nothing to...